Sizing Up John Roberts

This is a partial transcript of "Special Report With Brit Hume," July 20, 2005, that has been edited for clarity.

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BRIT HUME, HOST: When a Democrat is in the White House, and the subject turns to the Supreme Court, one name is always high on the list of prospective nominees. It is that of Professor Laurence Tribe of Harvard University, considered perhaps the nation’s most distinguished liberal legal scholar.

Professor Tribe knows John Roberts. And he joins me now from just outside Cambridge, Massachusetts.

Professor, welcome.

PROFESSOR LAURENCE TRIBE, HARVARD UNIVERSITY: Great to be here.

HUME: Tell me how you know John Roberts and what you think of him.

TRIBE: He was a student when I was a professor at Harvard Law School. I’m still a professor there, but he’s no longer a student. He’s obviously had a distinguished career.

HUME: Did you have him in any of your classes, that you can recall?

TRIBE: I tried to go back to whether he was one of the students in a section of about 200 common law students, and I haven’t gotten the records out yet. But I know that he was working on a note on the Harvard Law Review that I sort of was involved in looking at, at some stage.

And I knew him as a student, although not enormously well. I followed his career with admiration and respect. And I think he’s a really fine fellow. I think he’s clearly brilliant.

And what I think a lot of people want to know is, what is likely to happen with the Constitution of the United States in John Roberts' hands? How is he likely to interim it, not in terms of, you know, particular cases, but in terms of approach, in terms of the way he will look at it?

HUME: From what you know of him, how do you see that?

TRIBE: It’s a little hard to say. I was, I have to say, frankly, a little stunned at this strange case of the French fry, this case of Ansche Hedgepeth, because, even though it’s just one small case with one 12-year- old girl, there were things about it that I wanted really to ask John about.

I mean, in particular, in saying that the Constitution afforded no protection against a flat rule that allowed no tolerance whatsoever when someone, like a little kid, eats a piece of food in the subway, why didn’t think that violated liberty?

After all, Justice O’Connor, whose place he would take, thought that even a less stringent rule, a rule about seat belts, which did allow the police discretion, violated liberty. She was in dissent in that case, and he extended the Supreme Court’s rather narrow view of liberty.

And I think that’s sort of a window. So I want to know, you know -- that’s not consistent, really, with the sort of humane and decent John Roberts that I thought I knew.

HUME: Well, let’s ask about that. Is it your contention that he was clearly off-base in ruling that the Constitution did not forbid the local transit authority from having that stringent -- what they call a no- tolerance rule, and that the rest was therefore unconstitutional?

TRIBE: It is my view that the statute was unconstitutional. But I think it is also true that one could make an argument -- John Roberts did and two colleagues joined him -- one could make a respectable argument the other way.

But it’s an argument that may reveal something of his approach. Because in particular, part of his argument was very heavy reliance on the fact that, in 1791, when the Fourth Amendment, the protection of individuals against unreasonable searches and seizures, when it was ratified, the idea of liberty was a good bit narrower.

HUME: Right.

TRIBE: Why should that have so much weight? That’s the kind of question I’m interested in. Not was he was clearly right or clearly wrong, but what does it revealed about his approach?

The hearings, I think, can serve a very important national educational function, even if we grant that the outcome is almost certain. Because I think the country needs to know, not how will he rule in particular cases -- God knows, in the next 30 years, cases we can’t even begin to dream of will come before him -- but what will be his starting premises about the Constitution?

HUME: Well, let’s just continue on this case, if I can, with you for just a second. This was a -- he was writing for a unanimous court in this case.

TRIBE: That’s right.

HUME: And you would acknowledge that there was a Supreme Court precedent in this area that you disagree with, in which indeed you mentioned Sandra Day O’Connor was in dissent about.

TRIBE: Right. That precedent, I think, did not dictate this result. That precedent said that a state may give discretion to police officers to arrest and take into custody people who fail to obey the seatbelt laws when a citation would not be sufficient.

HUME: Right.

TRIBE: This was a flat rule saying that if you’re a minor, one French fry and you’re busted, and no discretion was given. The leap between that case and this case was a leap in logic that I think needs some explanation.

HUME: Well, would you think that this case -- majority rule that it was, and indeed not majority, unanimous.

TRIBE: That’s right, three-to-nothing. It’s common, you know, that in courts of appeals, it’s quite common that, when a respectable opinion is written one way, somebody will not bother writing a dissent. I believe they all were persuaded of his views, and it doesn’t mean that it calls for no explanation.

HUME: Well, the question, I think, that would intrigue and interest the Senate, which would be whether this ruling would place him outside the judicial mainstream. Do you think it does?

But when the question is, how can we get a good idea of the way he would approach basic issues of liberty, in contexts that we can’t even predict, knowing more about why he felt he was so constrained in this case, why he felt the Constitution had to be interpreted this way, would tell us a good bit about his philosophy, when you connect the dots.

There is this case, and there is the Hamdan case on Monday, in which he didn’t write the opinion, but joined.

HUME: Right. Right.

(CROSSTALK)

TRIBE: With detention. One connects the dots to get a picture.

HUME: Right. That will have to be a case for another day.

Professor Tribe, a pleasure to have you.

TRIBE: Pleasure to be here.

HUME: Thank you.

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